George v. State

• Decision Date: 30 April 1980
• Docket Number: No. 1079S272,1079S272
• Citation: 403 N.E.2d 339,273 Ind. 271
• Parties: Ronald A. GEORGE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 339

403 N.E.2d 339

273 Ind. 271

Ronald A. GEORGE, Appellant, v. STATE of Indiana, Appellee.

No. 1079S272.

Supreme Court of Indiana.

April 30, 1980.

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

The appellant was charged with the Class B Felony of Burglary. On August 28, 1978, appellant informed the court that he wished to enter a plea of guilty, pursuant to a plea agreement which had been reached with the prosecuting attorney. The court was informed that the agreement would be reduced to writing and filed with the court. At that time, the court fully advised the appellant of his constitutional rights which he would waive by pleading guilty. On September 11, 1978, the trial court indicated that it would not accept the plea agreement and set the case for trial, for the next day.

On the following day, the appellant again offered to plead guilty. The plea agreement which had been referred to on August 28 had been reduced to writing and filed with the court. The plea agreement stated that the appellant had discussed specifically listed constitutional rights with his attorney and that by pleading guilty he would waive these rights. The court again informed appellant of his right to a trial by jury and determined that appellant was satisfied with his attorney and that the plea was voluntary and not the result of coercion. After appellant described the manner in which the crime was committed, the court accepted appellant's plea. On October 10, 1978, the court imposed a 15-year sentence finding aggravating circumstances. Appellant subsequently filed a Petition for Post-Conviction Relief, which was denied on April 12, 1979. This appeal is from that denial.

Petitioner contends his plea of guilty was not knowingly, intelligently and voluntarily made. He takes the position that the proceedings on August 28, when the court was informed of his desire to plead guilty and when the court fully advised the petitioner of his rights are completely severable from the subsequent proceedings on September 12 when the court accepted the plea. We do not accept this proposition. The applicable statute, IC 35-4.1-1-3, (Burns 1973), provides:

"35-4.1-1-3 (9-1204). Plea of guilty Defendant advised by court. The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

"(a) Determining that he understands the nature of the charge against him;

"(b) Informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;

"(c) Informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;

"(d) Informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences "(e) Informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby." (IC 35-4.1-1-3, as added by Acts 1973, P.L. 325, § 4, p. 1750.)

Nowhere in the statute is there a reference as to when such advisement is to take place.

In Neeley v. State (1978) Ind., 382 N.E.2d 714, this Court indicated that the entire record would be examined to determine whether or not the appellant had received full advisement of his constitutional rights. See also Turman v. State, (1979) Ind., 392 N.E.2d 483. Prior to the passage of the above statute, this Court held that a defendant must be advised of his constitutional rights at the time he is seriously considering entering a guilty plea. See Malek v. State, (1976) 265 Ind. 604, 358 N.E.2d 116.

The rule set out in Malek was reiterated in Kindred v. State, (1977) Ind.App., 365 N.E.2d 776. In that case, Judge Robertson wrote, "It is the purpose of this statute to insure that a defendant, at the time of entering his plea of guilty, is fully informed of his rights and makes a responsible waiver of those rights and that a proper record is made of the proceedings to insure fair and efficient review by an appellate court . . ." Kindred, supra, 365 N.E.2d at 779.

In the instant case, it is clear that on August 28, 1978, when appellant first informed the judge he wished to enter a plea of guilty, the judge fully advised him of his constitutional rights in accordance with the mandate of the statute. The court in doing so made it clear that it would not be bound by the sentencing recommendation in the plea agreement and that the defendant faced a potential maximum sentence of twenty (20) years. Under the above cited cases, we hold that the advisement was appropriate since the defendant at that time was seriously considering pleading guilty. On September 11, 1978, appellant signed a written plea agreement which included in its terms a statement that the defendant had read and had read to him the guilty plea, including a recital of the specific constitutional rights which he would waive by pleading guilty. On September 12, when the judge accepted the plea, the court again established that appellant knew the court was not bound by the terms of the agreement. The court interrogated the defendant and found that he understood the nature of the charge against him and established a factual basis for the plea. The court summarized appellant's rights, determined that he was satisfied with his attorney, found that the plea was voluntarily entered, and advised appellant that he could withdraw his plea and try the case to a jury. On a record such as this, we cannot say that appellant did not knowingly and voluntarily plead guilty.

Appellant claims that his position is supported by Beard v. State, (1978) Ind.App., 375 N.E.2d 270. In Beard, the Court of Appeals reversed the acceptance of a guilty plea where Beard had not been properly informed of his rights and where the court failed to establish a factual basis for the plea. The trial court informed Beard's co-defendant of his rights at an arraignment hearing. When Beard was questioned, the court merely informed him that he possessed the same constitutional rights his co-defendant possessed. When Beard pleaded guilty at a hearing seventy (70) days...